DRUDGE & PELL & MITCHELL DRUDGE & SMITH & PELL RENNIE & RENNIE

FAMILY COURT OF AUSTRALIA

DRUDGE & PELL & MITCHELL
DRUDGE & SMITH & PELL
RENNIE & RENNIE

[2012] FamCA 1126

FAMILY LAW – ICL’s request that matter be relisted where caregiver refused to make child available for observation session with family consultant –

APPLICANT (DGC13564/2010):	Ms Drudge
APPLICANT (MLC11634/2011):	Ms Drudge
APPLICANT (MLC10491/2009):	Mr Rennie

FIRST RESPONDENT (DGC13564/2010):	Ms Pell
SECOND RESPONDENT (DGC13564/2010):	Mr Mitchell

FIRST RESPONDENT (MLC11634/2009):	Mr Smith
SECOND RESPONDENT (MLC11634/2009):	Ms Pell

RESPONDENT (MLC10491/2009):

Ms Rennie

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER:

Mr Piekarski

FILE NUMBERS:	DGC	13564	of	2010
MLC	11634	of	2011
MLC	10491	of	2009

DATE DELIVERED:

19 September 2012

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Bennett J

HEARING DATE:

19 September 2012

REPRESENTATION

COUNSEL FOR MS J.J. DRUDGE:

Ms Marshall

SOLICITOR FOR MS J.J. DRUDGE:

Cash & Stavroulakis

COUNSEL FOR MS D.L. PELL:

Mr Weerappah

SOLICITOR FOR MS D.L. PELL:

Bayside Solicitors

COUNSEL FOR MR S. MITCHELL:

Mr Le Souef

SOLICITOR FOR MR S. MITCHELL:

Meier Denison Guymer

COUNSEL FOR MR H.R. RENNIE:

Ms Bolton

SOLICITOR FOR MR H.R. RENNIE:

Deans Legal

COUNSEL FOR MS B.C. RENNIE:

Ms Matthews

SOLICITOR FOR MS B.C. RENNIE:

Wightons Lawyers

COUNSEL FOR THE ICL:

Ms Harris

Orders

In all of the matters:-
File No (P)DGC3564/2010 – Drudge, Mitchell & Pell,

File No (P)MLC11634/2011 – Drudge, Smith & Pell and
File No (P)MLC10491/2009 – Rennie

IT IS ORDERED THAT:

Subject to further order of the Court, this matter be fixed for final hearing before me on 6 May 2013 estimated to take 12 to 15 days.
My reasons for decision this day be transcribed and when settled a copy be made available to the parties.
The evidence of Ms EE this day be transcribed and a copy be made available to the parties.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Drudge & Pell & Mitchell Ors 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 MELBOURNE

FILE NUMBER: DGC 13564 of 2010

Ms Drudge

Applicant

And

Ms Pell

First Respondent

Ms Mitchell

Second Respondent

FILE NUMBER: MLC 11634 of 2011

Ms Drudge

Applicant

And

Mr Smith

First Respondent

Ms Pell

Second Respondent

FILE NUMBER: MLC 10491 of 2009

Mr Rennie

Applicant

And

Ms Rennie

Respondent

And

Independent Children’s Lawyer (for all three matters)

REASONS FOR JUDGMENT

ex tempore

This is a complex case involving, in fact, three sets of proceedings and the children and parents and others associated with them.
The issue for determination today is whether the family report writer Ms EE ought to complete her assessment of all three family constellations by assessing B who is seven years old with the alleged perpetrator of abuse, Mr Rennie. On 16 May 2012 I made numerous orders in these three matters including for the preparation of a family report, which order included:-
The parties comply with all reasonable directions as to attendance upon the said Family Consultant(s) as and when required by the said Family Consultant and the order of assessment interviews be as directed by the Family Consultant.”
and further -
The family report deal with the following matters:-
a)   any views expressed by the children and any factors (such as the children’s maturity or level of understanding) that may affect the weight that the court should place on those views;
b)   […]
c)   an observation of each party with the child or children in respect of whom that party seeks orders or resides or spends time with (unless it appears to the Counsellor that such an observation taking place is not in the immediate best interests of the children);
d)   recommendations as to how the matters in issue between the parties and/or arising out of the proceedings, may be resolved in the best interest of the relevant child(ren).
The report was assigned to Ms EE, family consultant. I receive into evidence the curriculum vitae of Ms EE which I mark exhibit “A” and direct remain on the court file. I also direct that copies be made available to the practitioners in court and those who have attended by tele-link following the hearing.
Mr Rennie is the life partner of B’s mother and the father of a child of that relationship. Mr Rennie seeks no orders in relation to B but his wife, B’s mother, seeks residence of B so that B would then reside in Mr Rennie’s household. Mr Rennie has denied on oath any sexual impropriety or any conduct which would mean that B spending time or living with him could expose B to an unacceptable risk of sexual or physical or psychological harm.
Ms EE has completed nearly all interviews and observations for the report. Only the observation of B with Mr Rennie is outstanding, if it is to occur. The maternal grandmother objects to any such observation taking place. However, if I say today that it should occur she will deliver B to the area of Child Dispute Services in this Registry of the Court to enable the observation to take place at the discretion of Ms EE. The maternal grandmother will be deeply disturbed by B’s exposure to Mr Rennie, even under the direct supervision of the family consultant, but it will occur nonetheless.
I have read the early documents in the proceedings. I have not read all of the most recently filed documents although I am told that I have been taken to the relevant parts of the recent affidavits by those who are here today.
Mr Weerappah, solicitor, acts for the maternal grandmother. Mr Le Souef acts for the father of B who is sitting in court next to the maternal grandmother and step-grandfather. They both oppose any observation session which involves B being in the presence of Mr Rennie.
Mr Rennie is represented by Ms Bolton who has been in court, as has Mr Rennie, but she has not sought to either cross-examine or make any submissions in this matter.
The independent children’s lawyer is represented by Ms Harris. Ms Harris’ position is that the observation session should be a matter open to Ms EE and whether or not it occurs should be a matter within her professional judgment.
No other party seeks to be heard.
It is common ground that B has autistic spectrum disorder. For the overwhelming majority of his life, B has resided in the care of his maternal grandmother.
The maternal grandmother is estranged from the mother (her daughter).
As with any child matter, the paramount consideration is the best interests of B. This is a less adversarial trial matter. I also have regard to the principles for conducting child-related proceedings set out in s69ZN being:-
(3) The first principle is that the court is to consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings.
(4) The second principle is that the court is to actively direct, control and manage the conduct of the proceedings.
(5) The third principle is that the proceedings are to be conducted in a way that will safeguard:
(a) the child concerned from being subjected to, or exposed to, abuse, neglect or family violence; and
(b) the parties to the proceedings against family violence.
(6) The fourth principle is that the proceedings are, as far as possible, to be conducted in a way that will promote cooperative and child‑focused parenting by the parties.
(7) The fifth principle is that the proceedings are to be conducted without undue delay and with as little formality, and legal technicality and form, as possible.

The matter has proceeded with Ms EE giving evidence. I asked her some questions first, followed by Mr Weerappah who cross-examined her and then Mr Le Souef and then Ms Harris.
It occurs to me that having heard the evidence that the coalface of the child-related work of this Court is Child Dispute Services and, within that section of the Court, the family consultant’s assessment of children and relevant adults.
Ms EE proposes to balance the best interests of B by assessing any lack of comfort or upset or anxiety or trauma he may exhibit at the prospect of or the reality of seeing Mr Rennie, against providing herself with an opportunity to gather evidence in this case which will be presented to the Court, in due course. Ms EE’s evidence could provide the Court of the only evidence of a recent interaction between the child and Mr Rennie, as well as the reaction of Mr Rennie and the maternal grandmother and the mother.
I observed Ms EE to be a quiet but impressive witness. She said candidly that there is simply no guarantee that she can make to the child that he will feel totally secure whilst he is in her care. In my view, that shows appreciable and admirable insight into the fact that she cannot control the way a child thinks. The balance of Ms EE’s responses in cross-examination give me confidence that she will do her very best and that the child will be safeguarded to the greatest extent possible. To suggest that she could make a child feel totally secure would be, in my assessment, to over-estimate what is possible and to talk in terms which are simply too absolute to reflect reality.
The objection of the grandmother and the father to an observation session seems to be based on two arguments. First, that the risk of traumatising B by the prospect of the observation session and the observation session itself outweighs any advantage that could be gained from having the observation session. The disadvantage – it is clear from the grandmother’s affidavit that the disadvantage which she believes will be suffered by B is harm to his mental health and that it will leave him traumatised in the short to medium term, with such effects as not wanting to sleep alone, bed wetting and not wanting to visit the lavatory on his own. These are very significant behaviours which I do not underestimate but they are, as Ms EE pointed out, behaviours of which the grandmother already complains. Ms EE says she did not expect that the observation session, it if proceeds, would result in a spike in the particular behaviours.
The second plank of the maternal grandmother’s objection in relation to the observation is based on Ms EE’s qualifications and clinical ability. It was contended that Ms EE, who is a social worker, does not have the professional qualification of a psychologist or a psychiatrist. Well that goes without saying as Ms EE is neither a psychologist nor a psychiatrist (and no one said she was). She is a social worker of considerable experience and has all of the skill set expected of a social worker of her experience.
I am satisfied that based on Ms EE’s experience and her training as a social worker that she is appropriately qualified to be able to detect symptoms indicative of mental illness, certainly distress, certainly trauma in both children and adults. She is not qualified to diagnose or treat but should be able to identify behaviours which are symptomatic or indicative of mental illness.
Mr Le Souef adds another dimension to the argument in relation to Ms EE’s qualifications. He submits that Ms EE’s observations will be impeded by the fact that B has autistic spectrum disorder. I take his objection to be that she would not be able to necessarily interpret B’s reactions accurately. Ultimately that may be a matter which is addressed at the final hearing, but as I pointed out to Mr Le Souef, it does not appear to one which is supported by any expert evidence filed thus far and some expert evidence as to B’s autism has been filed.
I remind the parties however that Ms EE is a collector of evidence. It is not her role to make determinations of fact including whether Mr Rennie sexually abused B as alleged by the maternal grandmother. Ms EE is not a finder of fact.
Ms EE’s role is to conduct an observation session and produce a body of evidence which will be tested by cross-examination of her. There may also be evidence from other appropriately qualified persons.
I accept the submission of the independent children’s lawyer that Ms EE is a trained observer of children and adults and particularly of those in distress and associated with sexual abuse and other traumatic events.
I accept the submission of the independent children’s lawyer that the environment described by Ms EE and the process by which she would make a decision as to whether or not to proceed with an observation is a very controlled environment designed to ensure that the child does not suffer adverse reactions on a medium to long term basis or reactions which outweigh the utility of the process.
I accept the submission of the independent children’s lawyer that, in the absence of there being an opportunity for Ms EE to conduct an observation session, there would be no opportunity within the trial to assess B’s reaction to Mr Rennie.
The independent children’s lawyer pointed, in my view correctly, to a possible outcome of the proceedings being one which involves re-introduction of Mr Rennie into B’s life on the basis that Mr Rennie does not represent an unacceptable risk to B’s welfare. It is an astute observation.
The independent children’s lawyer referred to the grandmother’s evidence as highly emotive. I agree that what I have read is emotive. I accept that the grandmother feels enormously strongly about this issue and has not lightly objected to the process being undertaken. She believes that she is being protective. That brings me to the ancillary matter of how B should be prepared to come to court to see Ms EE.
B has to come in to see Ms EE to have an interview with her in any event. The attendance at court – he is going to have to be in the court building anyway. The independent children’s lawyer submits that the emotional content of the grandmother’s opposition is genuine and inevitability she will communicate some anxiety to B, not necessarily expressly or intentionally but indirectly.
The evidence of Ms EE was unequivocally that it is in B’s best interests for him to feel that coming to the court building is something that he should not fear and that he will be safe when he is in Ms EE’s company. B will obtain those impressions through his maternal grandmother, the step-grandfather and his father, in fact any relevant persons to his day-to-day care.
Of course as I have said, the observation session is not merely to assess the reaction of B. It has other purposes as well including an assessment of how relevant adults act around the event.
Having heard the evidence and cross examination of Ms EE, I am confident that there are appropriate safeguards in place such that it is in B’s best interests to permit the family consultant an opportunity to observe B in the presence of Mr Rennie if she considers that that is appropriate when she sees B at the appointed time.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 19 September 2012

Associate:

Date: 5 February 2013

[2012] FamCA 1126

Key Legal Topics

Areas of Law

Family Law

Civil Procedure

Legal Concepts

Procedural Fairness

Judicial Review

Expert Evidence