Evington and Fogden

[2010] FamCA 1156

FAMILY COURT OF AUSTRALIA

EVINGTON & FOGDEN [2010] FamCA 1156

FAMILY LAW – CHILDREN – Confidential counselling for 16 year old – constitutional validity of persons other than parents seeking parenting orders – father deceased and child self-placed

Family Law Act 1975 (Cth)

Donnell v Dovey (2010) 42 FamLR 559

APPLICANT: Ms Evington

RESPONDENTS: Mr and Mrs Fogden

INDEPENDENT CHILDREN’S LAWYER: Ms J. D. Kingston

FILE NUMBER: BRC 11309 of 2009

DATE DELIVERED: 8 December 2010

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Murphy J

HEARING DATE: 8 December 2010

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr Harris of Family Law Doyle Keyworth & Harris

SOLICITOR FOR THE RESPONDENT: Mr Tull of QAS Law & Associates

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Kingston of Legal Aid Qld

Orders

IT IS DIRECTED THAT

1. A copy of the comments made in open court today by his Honour Justice Murphy be transcribed and a copy of such transcript be provided free of charge to each of the parties and leave is granted to each of the parties to rely upon such transcript in respect of the issue of costs should any such application later be made.

IT IS ORDERED THAT

1. A copy of the s 69ZW Report by the Department of Communities (Child Safety Services) be provided to the parties and to the Independent Children’s Lawyer.

2. The mother shall file and serve an Amended Application setting out all parenting orders sought by her within 14 days of today.

IT IS ORDERED UNTIL FURTHER ORDER THAT

1. A counsellor or therapist, nominated by the Family Consultant be appointed to provide counselling for or therapy to the child B (“the child”) born … February 1995.

2. The counsellor:

   a.Undertake all such therapy or counselling with the child that the counsellor considers appropriate;

   b.Be authorised to discuss the counselling with the Independent Children’s Lawyer.

3. The counselling will be therapeutic and the counsellor shall not be required to produce records or provide any written report of the counselling in these proceedings unless in the counsellor’s opinion he/she considers such production or report to be appropriate or necessary.

4. The reasonable remuneration and expenses of counselling/therapy be shared equally between the mother as to one half and the Respondent Carers, Mr and Mrs Fogden as to the other half.

5. The Respondent carers, Mr and Mrs Fogden:

   a.Ensure the child attends all appointments at the times, dates and places nominated by the counsellor and/or the Independent Children’s Lawyer; and

   b.Comply with all reasonable directions of the counsellor and Independent Children’s Lawyer.

6. Leave be granted to the Independent Children’s Lawyer to provide the following documents to the counsellor:

   a.Family Consultant Reports and Memos prepared for the purposes of these proceedings;

   b.Magellan Reports prepared for the purposes of these proceedings;

   c.Affidavit of Dr H filed 15 November 2010.

7. The mother shall be at liberty, through her solicitor, to forward to the therapist consulted by the child in accordance with these orders, an affidavit setting out all such matters as the mother considers to be relevant to the process of therapy being undertaken with the child.

8. The Independent Children’s Lawyer has liberty to apply on the giving of seven days notice.

IT IS FURTHER ORDERED THAT

1. Pursuant to s 65DA(2) and s 62B, 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 Fact Sheet attached hereto and these particulars are included in these orders.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC11309 of 2009

MS EVERINGTON

Applicant

And

MR AND MRS FOGDEN

Respondents

EX TEMPORE

REASONS FOR JUDGMENT

1. The Independent Children’s Lawyer seeks orders that would permit the child the subject of these proceedings, B born in February 1995, to undertake a process of therapy or counselling which would remain confidential.  That application is made in the context of a current application by the mother for an order for sole parental responsibility. 

2. It will be observed that the child turns 16 in a matter of weeks.  I have already observed during the course of argument today that, by the time a parenting trial is heard in this matter, the child will be the best part of 16½.

3. This case has unusual features.  The child’s father is deceased and she has “self-placed” - to use the word contained in the section 69ZW report prepared by the Department of Communities (Child Safety Services) - into the care of Mr and Mrs Fogden, who are respondents to the parenting proceedings.

4. In the course of this matter, an earlier report has been prepared by Ms D, who is a family consultant attached to the Brisbane Registry of this Court.  The family report, prepared on 29 March 2010, records from the then available Department of Communities (Child Safety Services) report the mother's "continued persistence ... is causing [the child] to be interviewed by an increasing numbers of experts."  The report goes on, “It is anticipated that departmental documents will be subpoenaed.  Given [the child’s] age it is hoped that she can clearly express her wishes to the Court.”

5. There is no doubt, indeed it does not appear to be disputed by the mother, that the child is expressing an implacable desire to continue living with Mr and Mrs Fogden.  The mother would assert that there are a number of reasons why the child is saying so. They might be broadly summarised as an assertion that the child is not expressing true or genuine views in that respect.

6. The current application has also a more recent context.  Pursuant to earlier directions, the parties and the child attended upon Dr H for the purposes of that psychiatrist preparing a psychiatric report.  That report is annexed to an affidavit on 15 November 2010.  The report contains the following opinions (among others):

   It is likely that [the mother] has some personality vulnerabilities that may at times interfere with her interpersonal relationships.  These seem to express themselves in a certain dogmatic and inflexible determination that her opinion is invariably the correct one.  She appears to have also attempted to minimise or deny any previous psychological issues that her son may have had.  The reason for this is not entirely clear.

   She seems to have difficulty in accepting the situation regarding her daughter's choices at this point in time.  She seems to have difficulty in seeing her daughter as capable of making independent choices at times.

7. Dr H expressed the following opinions in respect of the child herself:

   In my opinion she most likely was competent to make her own decisions regarding medical treatments or matters of a similar complexity.  She appeared to be able to see enough of the potential consequences of her decisions and to understand that her perspective might change in the future regarding some of these matters.

8. Dr H went on to make the following recommendations which I consider appropriate to quote in full:

   I would recommend that voluntary mediation be offered to [the child] and her mother at the point in time when the young person is prepared to take up this option.  There seems to be little or no ethical justification for coercing a young person of this age and stage of development into changing her mind about where she lives unless she were to be in some immediate physical or psychological danger.  The information made available to me does not suggest that she is at this level of risk.

9. Those comments, together with other aspects of the evidence, caused me to raise with Mr Harris, the solicitor for the mother, precisely what parenting orders were being pursued by her, given that by the time this matter comes on for trial, the child will be about 16½.  Mr Harris indicated that the mother challenged the constitutional validity of sections of the Act which provide for persons other than parents to seek parenting orders in respect of children. 

10. Further, and as a consequence, Mr Harris would, on behalf of the mother, seek to challenge an express provision of the Act and a number of Full Court authorities (for example, Donnell v Dovey (2010) 42 FamLR 559) which unequivocally hold that persons other than parents are able to seek parenting orders pursuant to the Act. As Mr Harris concedes, that matter is a matter for the High Court of Australia.

11. Mr Harris makes it plain, however, that the mother seeks to also pursue at a trial orders that the child live with her, and that the mother have sole parental responsibility in respect of her. 

12. I raised with Mr Harris the potential ramifications for pursuing those orders if, ultimately, a trial court seized of all of the issues, and having heard all of the evidence and the cross-examination of relevant witnesses, makes orders to the effect that the child’s wishes and views should be respected and that the current orders be maintained.  In particular, reference was made to the possibility of an order being made for costs pursuant to section 117 of the Act. (A transcript of today's proceedings will be ordered to be prepared and be made available to the parties free of charge.)

13. The instant application has a further evidentiary context to which reference must be made.  The memorandum of the family consultant Ms D, who has prepared an earlier report in this matter, was prepared on 29 November 2010.  That report is annexed to an affidavit of Ms Kingston, the Independent Children’s Lawyer, filed on 3 December 2010.  That report includes the following:

    (2)[The child] attended the Brisbane Registry on Monday, 29 November 2010.  During my interview with [the child] she disclosed that she had begun to remember events/incidents that allegedly occurred when she was between the ages of seven to nine years old. 

    (3)[The child] was visibly upset and agitated when she was making her disclosures and at times was reduced to tears.  It was clear that these memories caused her great distress and that she is in need of speaking to someone with professional knowledge and expertise to help [the child] process these memories.

14. Ms D goes on to say:

    (5)It is my opinion that [the child’s] disclosures do not necessarily impact on the issues before the Court, nor do they impact on my assessment of [the child’s] current situation, or the comments I may make in my forthcoming updated report.

    (6)It is my opinion, nonetheless, that based on the nature of her disclosures, and the level of distress I observed in her today, that [the child] is in need of expert therapeutic counselling as soon as possible.

15. It is, in my view, particularly significant that Ms D says that her recommendation for urgent expert therapeutic counselling is made, irrespective of the fact that the disclosures made by her "do not necessarily impact on the issues before the Court".  I completely agree with this assessment. 

16. Based on the information before the Court it seems abundantly plain that whatever might be the veracity or lack of veracity in the statements made by the child, this is a profoundly troubled young woman who has, of her own volition (for whatever reasons yet to be determined) decided to live with people other than her mother. 

17. The level of distress experienced by the child, observed by Ms D is, in a young woman of this age, sufficient of itself in my view to raise the real possibility of therapeutic assistance being needed as soon as possible. When the circumstances in which this young woman finds herself is added to that mix, the need for therapeutic intervention becomes all the more urgent and necessary. 

18. Initially, the mother through correspondence directed from her solicitors on 30 November 2010, opposed that course of action.  Mr and Mrs Fogden agree with the orders sought by the Independent Children’s Lawyer, including orders which compel them to make such arrangements as might be necessary so as to facilitate that counselling.  In the letter just referred to, the mother's solicitors say that:

    We would ask the matter be referred to the appropriate authorities and investigated.  When the matter is investigated our client would have no objections to having [the child] seeing an appropriate counsellor or therapist.

19. At the time that letter was written the mother's solicitors, and indeed the solicitors for Mr and Mrs Fogden, did not have available to them an updated report prepared by the Department pursuant to section 69ZW of the Act, which such report subsequently issued on 6 December 2010.  The contents of that report were made available to the parties ‑ in the case of Mr Tull, who appears on behalf of the Fogdens by telephone, by my reading it to him during the proceedings this morning. 

20. That report makes it abundantly clear that the reference to the appropriate authorities and investigation contemplated by the letter of 30 November 2010 have indeed taken place. The Department has no intention to intervene, but will provide information that may be of assistance to the Family Court of Australia in the instant proceedings. 

21. The Department makes it clear in that report that:

    It would only be suspected that [the child] may be a child in need of protection IF [the word "if" is capitalised] she were to return to her mother's care.  Therefore further Departmental intervention is not required at this point in time as there are no immediate concerns for her safety.

22. Subsequent to being made aware of that report the mother, initially, again indicated her objection to the orders sought by the Independent Children’s Lawyer.  In submissions on her behalf in that respect the mother made it clear that she was anxious that what might conveniently be called "the full story" behind the things that the child has been saying should be made clear to any therapist. 

23. I indicated during the course of argument that it seemed to me that this was not a basis for objecting to the report per se but might, for example, found a submission that an order that the therapist be made aware of all such assertions as the mother makes in that respect prior to, or as part of, the therapeutic process envisaged. Ultimately, with that amendment, all parties were in agreement. 

24. I made it plain to Mr Harris that I was very concerned about the amount of evidence raising concerns about the involvement of the mother in various processes associated with these proceedings. In particular, I refer to the passage earlier quoted about concerns expressed by the department, in particular in relation to "the mother's continued persistence ... causing [the child] to be interviewed by increasing numbers of experts." So, too, the expert opinion of Dr H that the mother appears to have "difficulty in seeing her daughter as capable of making independent choices at times", and the earlier opinions expressed by Ms D.

25. It seems to me appropriate that the mother should be permitted to provide to the therapist all such information in writing that she might choose.  But, I would not contemplate the mother contacting the therapist orally with a view to expressing any views that she might have. Mr Harris indicated that such information as the mother sought to provide to the therapist would be provided by way of affidavit, and I consider this to be appropriate. 

26. I make it abundantly plain in these reasons, and have made it abundantly plain to the mother through Mr Harris, that the therapist will be permitted to do such work as the therapist considers appropriate within their expertise and training, and it should not be thought that the therapist is under any obligation whatsoever to pass on to the child any information given to the therapist by the mother. That issue is a matter entirely for the professional judgment of the therapist.

27. The orders contemplate that the therapeutic process with the child should be confidential, and I wholeheartedly agree that the process should be undertaken in that way. The child needs the security of that environment, particularly in light of the issues for her earlier identified.

28. I have no doubt that the process contemplated by the orders sought by the Independent Children’s Lawyer is in the child’s best interests and I therefore order:  (1) in accordance with the application in a case filed by the Independent Children’s Lawyer on 3 December 2010;  (2) that the mother be at liberty through her solicitors to forward to the therapist consulted by the child in accordance with these orders an affidavit setting out all such matters as the mother considers to be relevant to the process of therapy being undertaken with the child.

29. The mother indicates she has no objection to paragraph 4 of the orders which seeks that the costs of the therapeutic process just referred be borne equally.  Such an approach seems, if I may say so, to be entirely consistent with what is said on the mother's behalf in the letter of 30 November 2010 from her solicitors that, “... our client wants to make it very clear, that she holds deep concerns for her daughter's mental and physical health”.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy delivered on 8 December 2010.

Associate: 

Date:  21 December 2010