Every and McNaught
[2007] FamCA 626
•14 June 2007
FAMILY COURT OF AUSTRALIA
| EVERY & MCNAUGHT | [2007] FamCA 626 |
| FAMILY LAW – CHILDREN - Application of independent children’s lawyer for psychiatric assessments of the mother and the father – Father does not consent to assessment – No jurisdiction to order assessment of father. |
| Family Law Act 1975 |
L & T (1999) FLC 92-875
AMS v AIF [1999] HCA 26; (1999) FLC 92-852
| APPLICANT: | Mr Every |
| RESPONDENT: | Ms McNaught |
| INDEPENDENT CHILDREN’S LAWYER: | Hale & Wakeling |
| FILE NUMBER: | MLF | 2242 | of | 2006 |
| DATE DELIVERED: | 14 June 2007 |
| PLACE DELIVERED: | Melbourne |
| JUDGMENT OF: | Bennett J |
| HEARING DATE: | 14 June 2007 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Wilson |
| SOLICITOR FOR THE APPLICANT: | McDonald Slater & Lay |
| THE RESPONDENT: | No Appearance |
| INDEPENDENT CHILDREN’S LAWYER COUNSEL: | Mr A. Hale |
| INDEPENDENT CHILDREN’S LAWYER SOLICITOR: | Hale & Wakeling |
Orders
That the independent children’s lawyer:-
(a)
forward a copy of the reports of Ms T dated 24 May 2007 and
1 December 2006 to the Department of Human Services;
(b)forward to the mother forthwith a copy of the report of Ms T dated 24 May 2007;
(c)forward to the Department of Human Services a copy of my reasons for decision when those reasons become available.
That by way of compliance by the mother with paragraph 4 of the consent orders made 2 March 2007, the mother undergo supervised urine testing on the first and third Monday of each calendar month commencing 18 June 2007 and provide the results of such tests to the independent children’s lawyer without delay.
IT IS FURTHER ORDERED BY CONSENT OF THE MOTHER AND NOT OPPOSED BY THE FATHER:-
That the mother undertake a psychiatric assessment by a psychiatrist nominated by the independent children’s lawyer, and that the mother bear the cost of such assessment and that Victoria Legal Aid be requested to provide funding for such a report.
That the mother and father enrol in and complete a Parenting Program at an agency nominated by the independent children’s lawyer and provide a certificate of completion of same to the other party and the independent children’s lawyer.
IT IS FURTHER ORDERED, BY CONSENT, AND UNTIL FURTHER ORDER:-
That the mother keep the father informed by telephone of any serious medical or other welfare issues affecting the children C born … June 2002 and B born … September 2003.
That the father be permitted to spend time and communicate with the said children by way of:
(a) letters, cars and gifts;
(b) by telephone each Wednesday between 6pm and 6:30pm.
That the parties keep the other advised of any medical and/or health issues concerning the children, and shall authorise and direct any medical practitioner or the like upon whom the children attends to discuss the children’s medical condition with, and forward copies of any reports and the like to, the other, and shall implement and adhere to any treatment regime specified by the children’s treating medical practitioner/s.
That the parties are hereby restrained from:
(a)denigrating the other in the presence or hearing of the children;
(b)discussing the allegations in these proceedings in the presence or hearing of the children.
That the parties provide to the other party and the independent children’s lawyer the names and contact details of al medical and health professionals upon whom they have attended in the last two years, and authorise and direct those professionals to release their medical records to the other party and the independent children’s lawyer.
That pursuant to section 65DA(2) and 62B of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the annexure hereto relating to parenting orders – obligations, consequences and who can help, the particulars of which are included in this Order.
That my reasons for judgment this day be transcribed and when transcribed a copy be sent to each of the parties including the independent children’s lawyer and to the proper officer of the Department of Human Services.
IT IS NOTED INCONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Bennett delivered this day will for all publication and reporting purposes be referred to as Every & McNaught
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLF 2242 of 2006
| MR EVERY |
Applicant
And
| MS MCNAUGHT |
Respondent
REASONS FOR JUDGMENT
(ex tempore)
This matter concerns the children, C born … June 2002, and B, born … September 2003 and is currently on track for a hearing in the Magellan list. The Magellan list is a highly resourced list dedicated to the determination of matters involving allegations of sexual abuse and serious violence in relation to children.
The father is the applicant in these proceedings. The mother is the respondent.
Pursuant to an order made on 25 September 2006, Andrew Hale, solicitor, was appointed as the independent children’s lawyer for the boys within the meaning of Division 10 of Part VII of the Act. As such, his role is to form an independent view, based on available evidence, of what is in the boy’s best interests and then act in these proceedings in what he believes to be the best interests of the boys.[1] He is not a legal representative retained by C and/or B and he is not bound by any instructions from the children.[2] The role of the independent children’s lawyer is to deal impartially with the parties, ensure that any views expressed by the boys are fully put before the court, to analyse documentary, expert evidence and reports and to distil from that evidence significant matters for the purpose of properly drawing them to the court’s attention. The independent children's lawyer is also under a specific duty to take steps to minimise for the child the trauma associated with proceedings[3] and to facilitate an agreed resolution of matters at issue in the proceedings to the extent that it is in the best interests of the child to do so.[4]
[1] s 68LA(2) Family Law Act 1975 (Cth).
[2] s 68LA(4) Family Law Act 1975 (Cth).
[3] s 68LA(5)(d) Family Law Act 1975 (Cth).
[4] s 68LA(5)(e) Family Law Act 1975 (Cth).
The proceedings involve allegations by the mother that whilst in the care of the father the two boys have been anally digitally penetrated. A Notice of Risk of Abuse to that effect was filed on 12 January 2007.
Pursuant to an order made by the Magellan Registrar on 23 January 2007, a report has been prepared by the Department of Human Services. It is dated
20 February 2006. That report has not been tested but, I note, that the recommendations set out at page 15 of the report include that all future time spent between the boys and the father be supervised either by an approved contact centre or further persons nominated by the father that are appropriate to facilitate supervision. As I have said, the report of Department of Human Services (“DHS”) has not been tested.
As part of the preparation of the matter for hearing, an updated family report has been prepared by a psychologist, Ms T, and is dated 24 May 2007. It updates an earlier report by Ms T dated 1 December 2006.
Ms T has recommended, amongst other things, that:
[The father] undertake a thorough and complete personality assessment as outlined above with [Dr S] of [F Clinic] and that the results be provided to the independent children's lawyer and Department of Human Services. It is recommended that [Dr S] be provided with a copy of this report prior to conducting this assessment; footnote paragraph 93.
The matter is mentioned before me today on the application of the independent children's lawyer for orders which, amongst other things, would require the father to do all acts and things necessary to undergo an assessment as envisaged by Ms T and for a report to be prepared of that assessment. The father opposes that order.
Other orders sought by the independent children's lawyer in relation to the children are not opposed by the father and are consented to by the mother. At this point I should note that there is no appearance by or on behalf of the mother today. However, the mother was a party to a telephone mention conducted by me on 12 June 2007. At that time the mother had a copy of the minutes of orders proposed by the independent children's lawyer and indicated her consent to the orders, in particular, her consent that she undergo a psychiatric assessment. In the event that she did not oppose the orders sought by the independent children's lawyer, I advised her that she need not attend court today. She said that she thought that she wanted to come to court in any event, but she has not done so. I do not take her absence as being significant.
I propose to rely on the consent she had earlier communicated to me.
As indicated, the father opposes a psychiatric assessment of himself.
At the telephone mention on 12 June 2007, I semaphored to all parties that
I doubted that the court had jurisdiction under the Family Law Act 1975 to order a stand-alone assessment of a party for the preparation of that party's case or otherwise. Today, Mr Hale has pressed his application for a psychiatric assessment of the father. He has referred me to various parts of Ms T's report and it does appear to me that a psychiatric assessment may well put the court in a better position to assess the father's capacities to parent and in particular, to determine the very significant issue of abuse as it is raised in these proceedings.
It is worth noting at this stage that s 60B defines the objects of Part VII as to ‘ensure that the best interests of the children are met’ by:-
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
The objects may be regarded as the core values of the legislation. Sub-section 60B(1)(a) of the Act has particular relevance in these proceedings. It emphasises that the involvement of both parents in the child’s life should be meaningful as to its quality and to the maximum regularity and frequency permitted by the child’s best interests.
The principles which underlie the objects are more specific but not exhaustive. They are that, except when it is or would be contrary to the child’s best interests:-
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
In proceedings under Part VII of the Act, the best interests of the child are the paramount, but not sole, consideration. In determining the best interests of a particular child, the Court is required to consider two primary considerations and several additional considerations, listed in s 60CC of the Act. The primary considerations echo the first two objects set out in s 60B of the Act. The primary considerations are set out in s 60CC(2) and are described as follows:-
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
This appears to be a case where both of the primary considerations are in issue are relevant.
The second of the primary considerations mirrors s 60B(b) of the Act and recognises the necessity of protecting children from physical or psychological harm, including being exposed or subjected to abuse, neglect or family violence.
The term, ‘abuse’ is narrowly defined in s 4 of the Act as ‘an assault, including a sexual assault, of the child’[5] or as the involvement of the child in a sexual activity by a person, where the child is used either directly or indirectly as a sexual object and where there is an unequal balance of power between the child and that person.[6]
[5] s 4(a) Family Law Act 1975 (Cth).
[6] s 4(b) Family Law Act 1975 (Cth).
‘Family violence’, however, is given a broader definition as actual or threatened conduct toward another person, their family or their property, which causes reasonable fear or apprehension for their safety and wellbeing.[7]
A notation to the definition in the legislation adds that the standard for such reasonable fear or apprehension is that of the reasonable person in those same circumstances. ‘Neglect’ is not defined in the Act.
[7] s 4 Family Law Act 1975 (Cth).
This consideration also requires a prospective evaluation. As such, the court must assess the future risk of exposure of the boys to physical or psychological harm and formulate orders which protect them from that harm. It is in that context that the independent children’s lawyer makes application for a psychiatric assessment of both parents and the father opposes the application in respect of himself.
I do not exclude the possibility that the court would be assisted by a psychiatric assessment of the father. However, I must first be satisfied that I have jurisdiction to make the order sought. I am not so satisfied.
I have referred the practitioners to the decision of L & T (1999) FLC 92-875 being a decision of the Full Court comprising Kay, Brown and Coleman JJ. There the Full Court allowed an appeal against a decision of Maxwell J which provided that the wife attend upon a psychiatrist “for assessment of her present psychiatric state and thereafter abide by such therapy program as is recommended by such psychiatrist”. At trial, the wife did not resist such an order being made if it was made as a condition that the daughter, then aged 7 years, reside or spend time with her. Maxwell J ordered that the child live with the husband and have contact with the wife. Her Honour’s separate order required the wife to be psychiatrically assessed and to abide treatment. From that order (and others) the wife appealed and their appeal judges discussed and decided the issue as follows:
[51].Whilst we have no doubt that an order could be made that a party attend upon a psychiatrist and undergo therapy as a condition of either a residence order or a contact order, we have significant doubt as to whether such an order can be made as a self-standing order. The Court's power to make any orders in circumstances such as these has to be found within the confines of ss 65D(1), 67ZC, 68B, or 114.
[52]. Section 65D(1) provides as follows:
"In proceedings for a parenting order, the court may, subject to this Division, make such parenting order as it thinks proper."
A "parenting order" is defined by s 64B as being an order which deals with:
(a)the person or persons with whom a child is to live;
(b)contact between a child and another person or other persons;
(c)maintenance of a child;
(d)any other aspect of parental responsibility for a child.
[53]. Section 68B provides:
"(1) If proceedings are instituted in a court having jurisdiction under this Part for an injunction in relation to a child, the court may make such order or grant such injunction as it considers appropriate for the welfare of the child, including:
(a)an injunction for the personal protection of the child; or
(b)an injunction for the personal protection of:
(i)a parent of the child; or
(ii)a person who has a residence order or a contact order in relation to the child; or
(iii)a person who has a specific issues order in relation to the child under which the person is responsible for the child's long-term or day-to-day care, welfare and development; or
(c) an injunction restraining a person from entering or remaining in:
(i)a place of residence, employment or education of the child; or
(ii)a specified area that contains a place of a kind referred to in subparagraph (i); or
(d) an injunction restraining a person from entering or remaining in:
(i)a place of residence, employment or education of a person referred to in paragraph (b); or
(ii)a specified area that contains a place of a kind referred to in subparagraph (i).
(2) A court exercising jurisdiction under this Act (other than in proceedings to which subsection (1) applies) may grant an injunction in relation to a child, by interlocutory order or otherwise, in any case in which it appears to the court to be just or convenient to do so.
(3) An injunction under this section may be granted unconditionally or on such terms and conditions as the court considers appropriate."
[54]. Alternatively, the power may be found in s 114:
"(1) In proceedings of the kind referred to in paragraph (e) of the definition of 'matrimonial cause' in sub-section 4(1), the court may make such order or grant such injunction as it considers proper with respect to the matter to which the proceedings relate, including:
(a)an injunction for the personal protection of a party to the marriage;
(b)an injunction restraining a party to the marriage from entering or remaining in the matrimonial home or the premises in which the other party to the marriage resides, or restraining a party to the marriage from entering or remaining in a specified area, being an area in which the matrimonial home is, or the premises in which the other party to the marriage resides are, situated;
(c)an injunction restraining a party to the marriage from entering the place of work of the other party to the marriage;
(d)an injunction for the protection of the marital relationship;
(e)an injunction in relation to the property of a party to the marriage; or
(f)an injunction relating to the use or occupancy of the matrimonial home.
(2) In exercising its powers under sub-section (1), the court may make an order relieving a party to a marriage from any obligation to perform marital services or render conjugal rights.
(3) A court exercising jurisdiction under this Act in proceedings other than proceedings to which sub-section (1) applies may grant an injunction, by interlocutory order or otherwise (including an injunction in aid of the enforcement of a decree), in any case in which it appears to the court to be just or convenient to do so and either unconditionally or upon such terms and conditions as the court considers appropriate.”
[55]. Finally, it was submitted to us that the power may be found within the confines of s 67ZC which provides:
"In addition to the jurisdiction that a court has under this Part [Part VII] in relation to children, the court also has jurisdiction to make orders relating to the welfare of the children."
[56]. It was submitted that the s 67ZC power is akin to the inherent power of the Supreme Courts in the exercise of their wardship and parens patriae jurisdiction and that such a jurisdiction knows no bounds. Reference was made to a passage from the dissenting judgment of Burton J in Brown and Pedersen (1988) FLC 91-967 at 76,996; 12 Fam LR 506 at 511 where his Honour included (inter alia) an oft quoted passage of Lord Denning MR from In Re X (a minor) [1975] 1 All ER 697 at 703 where his Lordship said:
"No limit has ever been set to the jurisdiction. It has been said to extend 'as far as necessary for protection and education'...”
[57]. In our view, whatever the limits of the wardship power are, a parent cannot be required to partake in a course of conduct or cease an activity merely because it would be in the child's interest that the parent so do. It may clearly be demonstrated that it is in a child's interest that a parent remain healthy and to that end give up smoking. Some would say it is essential that all adults undergo regular exercise, eat only healthy foods, and refrain from consuming alcohol. It would not be, in our view, a proper exercise of the "welfare" power for a court to place limits on a parent's conduct unless it could be demonstrated that those limits are necessary for the welfare of the child. Even then, careful consideration would need be given to the right of the parent to conduct their life as they see fit.
[58]. According to Gaudron J in AMS v AIF (1999) FLC 92-852 at 86,031-2; 24 Fam LR 756 at 777 (references omitted):
"[85]...It has been said that the parens patriae jurisdiction is 'an unrestricted jurisdiction to do whatever is considered necessary for the welfare of a [child]' and that '[i]ts limits…have not, and cannot, be defined'. However, the jurisdiction is not in principle supervisory. Rather, it is a jurisdiction which, in general terms, is exercised when there is some risk to a child’s welfare.
[86] If there is a risk to the welfare of a child, the parens patriae jurisdiction will support a great variety of orders and orders of great width. It has been said that it will support orders related to 'categories of cases…such as custody, care and control, protection of property, health problems, religious upbringing, and protection against harmful associations' and that '[t]hat list is not exhaustive…[for] the powers of [a] court in this particular jurisdiction have always been described as being of the widest nature'.
[87] Notwithstanding that the welfare jurisdiction is similar to the parens patriae jurisdiction and that that jurisdiction will support a wide variety of orders and orders of great width, it would be reading too much into a statute simply conferring jurisdiction with respect to the welfare of a child to read it as authorising any order that would promote the child’s welfare. That would be to convert a jurisdiction designed to protect against risk into a jurisdiction to supervise parents and guardians in the exercise of their rights and responsibilities."
[59]. Similarly Hayne J said at FLC 86,054; Fam LR 811:
"[213] Section 36 (a) of the 1975 State Act provided for applications 'for an order with respect to the custody or guardianship of, access to, or welfare of, a child'. The power of a court acting under that provision to make orders for the welfare of a child was very wide. The jurisdiction was, no doubt, similar in many respects to the parens patriae jurisdiction of the Court of Chancery. Nevertheless, it may be doubted that this power permitted the making of any and every kind of order directed to a parent simply because it was thought that the child might benefit as a result. For example, it may be doubted that, based on a finding that a child would be better off if a custodial parent had a well paid job, a court could make an order that a parent stay in a particular form of employment rather than change jobs or cease work altogether, or take an educational course that would fit the parent for better paid work than he or she was then undertaking. It is, however, not necessary to explore, let alone attempt to define, the limits of this power."
[60]. Had the ongoing psychiatric treatment been imposed as a condition of contact, then, in our view, on the evidence available to her Honour such an order could well have been upheld. However, the form of the order leaves it free standing, and in our view it does not comfortably fit within any of the heads of power that we have identified. In those circumstances we ordered that Order 13 be set aside.
Mr Wilson, for the father, relies on that analysis of the law in opposition to the order sought. Mr Hale, being the applicant for the order and the independent children's lawyer, did not make contrary submissions. He identified only the welfare jurisdiction of the court as a relevant power.
I adopt, with respect, the above statement of the law as accurate and I apply it to this case.
As I mentioned to the practitioners, I am comfortable to extrapolate from the reasons of Gaudron and Hayne JJ in the case of AMS v AIF[8] that, if the court does not have power to make orders which merely promote a child's welfare, then it does not have power to make orders which require parties to do acts and things for the preparation of his/her case merely because the determination of the case will have as the paramount consideration the best interests of a child. In children’s cases, the court has an overarching duty to act in the best interests of children but the jurisdiction is not unlimited. Furthermore, whilst judges may direct and largely control the manner in which cases proceed before them, litigants must still be responsible for the conduct of his/her own case. In the present case, the father assumes responsibility for his case and, I infer, he takes responsibility for the fact that this case will be set down for hearing and in due course be determined without the benefit or otherwise of expert psychiatric evidence pertaining to him.
[8] [1999] HCA 26; (1999) FLC 92-852
I conclude that the court does not have jurisdiction to order the assessment sought by the independent children’s lawyer.
I should mention that when Mr Wilson rose to make his submissions in opposition to the psychiatric assessment of his client, his submissions appeared to be twofold. First, was the lack of jurisdiction which I have discussed and determined in his favour.
Mr Wilson’s second submission was that the factual matrix of the case did not support a psychiatric assessment. He did not conclude those submissions because I indicated that, from this vantage point, being a mention of the matter before I had read all the material let alone heard any of the evidence, it was going to be impossible for me to assess whether or not the facts of the case justified a psychiatric report. Given my determination of jurisdiction, it is also irrelevant.
In the course of discussing Mr Wilson’s second submission, I did mention that the position taken by the father may result in the father's case at trial being somewhat vulnerable. That is because, if the court were to be satisfied that there are risks which approximate an unacceptable risk, that situation is not going to be ameliorated by reliance on any psychiatric evidence. Psychiatric evidence in this court customarily goes not only to the pathology of a person, a diagnosis and assessment but also to whether any condition which is identified can be treated and, if so, the prospects of success of the treatment. It is usually after a consideration of all of that evidence that the risks of abuse stands to be assessed. These comments are made generally, not specific to this case because I have not heard the evidence. It remains that the father has responsibility for running his own case as he sees fit.
The independent children's lawyer has said that he will send copies of Ms T’s reports to the Department of Human Services and there is an order to that effect. Those reports should be accompanied by these reasons for judgment.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett
Associate:
Date: 26 June 2007
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Family Law
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Procedural Fairness
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