Hicks and Derrick

[2019] FamCA 293

FAMILY COURT OF AUSTRALIA

HICKS & DERRICK [2019] FamCA 293

FAMILY LAW – FAMILY THERAPY – Appointment of family therapist – Where the mother seeks the appointment of a new family therapist – Where the mother asserts that the family therapist is not appropriately qualified – Where the family therapist has expressed an opinion on matters that remain before the Court – Where the mother has not facilitated the children attending family therapy in accordance with orders – Where the father has commenced attending family therapy – Application dismissed.

Family Law Act 1975 (Cth)

Rice & Asplund (1979) FLC 90-725

APPLICANT: Ms Hicks

RESPONDENT: Mr Derrick

INDEPENDENT CHILDREN’S LAWYER: Auslawyers

FILE NUMBER: SYC 8257 of 2016

DATE DELIVERED: 10 May 2019

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: McClelland DCJ

HEARING DATE: 29 April 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Coulton

SOLICITOR FOR THE APPLICANT: Nicholas George Lawyers

SOLICITOR FOR THE RESPONDENT: Barkus Doolan

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Auslawyers

Orders

1. The mother’s oral application to vary the orders made on 11 January 2019 is dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 8257 of 2016

Ms Hicks

Applicant

And

Mr Derrick

Respondent

REASONS FOR JUDGMENT

Introduction

1. This matter relates to parenting proceedings between Ms Hicks (“the mother”) and Mr Derrick (“the father”) in respect to the children, X, born in 2005, Y, born in 2006 and Z, born in 2008 (“the children”).  

2. The matter comes before the Court at the request of the Independent Children’s Lawyer (“ICL”), in circumstances where the mother has not facilitated the children attending family therapy with the family therapist selected by her, in accordance with Court orders.

Background facts

1. On 11 January 2019, I made, inter alia, the following orders (“the orders”):

   (1) Within 14 days, the father provide the mother with the names of three (3) appropriately qualified practitioners who he nominates for the purpose of conducting family therapy between himself and the children. If requested by the father, the Independent Children’s Lawyer is granted leave to contact [Dr R] to obtain her recommendations as to practitioners who are appropriately qualified to provide such therapy.

   (2) Within seven (7) days of having received the names of the practitioners referred to in order 1 above, the mother nominate from that list the practitioner who is to provide the family therapy (“the family therapist”).

   (3) Within seven (7) days of the mother having nominated the family therapist, the parties shall contact the family therapist for the purposes of arranging the family therapy between the father and the children. Thereafter, the mother shall facilitate the children's attendance at such therapy, as recommended by the family therapist.

2. The orders were made with a view to attempting to restore the relationship between the father and the children.  The background to the making of the orders is set out my Reasons for Judgment dated 11 January 2019. 

3. In accordance with the orders, the father provided a list of three practitioners for the purpose of conducting family therapy between himself and the children, within the time stipulated.  The mother chose from that list the name of one therapist, Dr T, to provide that therapy, within the time stipulated in the orders.

4. In accordance with order 3 of the orders, the parties contacted Dr T for the purpose of arranging the family therapy.

5. On 11 February 2019, the mother was advised by a staff member of Dr T’s practice that Dr T does not ordinarily provide family therapy, but that two other practitioners at that practice do provide family therapy.  Dr T has subsequently confirmed, however, that she does provide family therapy and that it is her intention to do so in respect to the father and the children.

6. On 18, 19 and 20 February 2019 and 8 and 15 April 2019, the father attended appointments with Dr T.  He paid $505 for each of the consultations on 18 and 20 February 2019 and $395 for the consultations on 19 February 2019.

7. On 22 February 2019, the mother’s current solicitors, who were retained by the mother shortly prior to that date, sent a letter to the solicitors for the father contending that Dr T was not an appropriately qualified practitioner, as required by order 1 of the orders.  That contention was made on the basis that Dr T is not a member of the Australian Association of Family Therapy.

8. The mother had booked an appointment for the children with Dr T on 25 February 2019, however she cancelled that appointment on or about the same date as the appointment.  The father paid a cancellation fee of $395 in respect to that cancellation.

9. At the hearing of this application, on the basis of contentions set out below, Counsel for the mother made an oral application to change the family therapist selected by the parties, pursuant to the orders. 

The parties’ contentions

1. The mother contends that Dr T is not an appropriate person to provide family therapy to the children and the father because:

   a)Dr T’s receptionist initially advised the mother that Dr T does not ordinarily provide family therapy;

   b)Dr T is not appropriately qualified to provide the therapy because she is not a member of the Australian Association of Family Therapy;

   c)In an email dated 26 April 2019, Dr T responded to questions posed by the father, and expressed a view on matters which are the subject of these proceedings and more properly determined by the Court; and

   d)The times arranged by Dr T for the children to attend therapy will, on occasion, result in the children missing some school time.

2. Comparatively, the father contends that:

   a)Dr T has been appointed in accordance with the orders;

   b)In compliance with the orders, he has attended upon Dr T in accordance with her recommendations and has incurred not insignificant expense in respect to those appointments;

   c)The time that the children would be absent from school to attend appointments with Dr T would be relatively short and may avoid a situation where they are too tired to attend that therapy at the end of the school day; and

   d)Changing the identity of the family therapist would cause additional delay and detrimentally impact upon the prospect of the relationship between the father and the children being restored. 

3. The ICL supports those contentions of the father.

Consideration

1. For the purpose of this decision, I accept that orders are parenting orders, made pursuant to Part VII of the Family Law Act 1975 (Cth).

2. For the purpose of this decision, I further accept that the oral application made by the mother at the hearing of this matter on 29 April 2019 is an application to vary the orders.  Specifically, I accept that the mother’s application seeks a variation of the orders to either appoint a new family therapist or her choosing or appoint a family therapist who is a member of the Australian Association of Family Therapy.

3. There is no question that the Court has power to vary interim parenting orders.  However, in accordance with principles adumbrated in the decision of the Full Court in Rice & Asplund (1979) FLC 90-725, the party applying for the variation of interim orders is required to establish changed circumstances such that it is in the best interests of the children for the orders to be changed.

4. The mother’s objection to Dr T providing the family therapy on the basis that a receptionist working at Dr T’s practice advised her that Dr T did not ordinarily provide family therapy, is, in my view, without substance.  That matter has been clarified by Dr T, who has, in fact, commenced providing family therapy by, initially, consulting with the father.

5. I further find that the mother’s contention that Dr T is not appropriately qualified is also without substance.  In that regard, Dr T has an impressive curriculum vitae, which outlines her academic qualifications, professional experience and contributions to professional development, including in the area of family therapy.  The mother has provided no evidence or advanced any argument as to why the provision of family therapy ordered by the Court should be confined only to those persons who are members of the Australian Association of Family Therapy. 

6. The only arguments advanced by the mother which, in my view, are of substance are, as follows:

   a)That the children’s education would be adversely impacted by the fact that Dr T has proposed the children attending consultations with her during school hours; and

   b)That Dr T has expressed an opinion in respect to two issues which remain before the Court. 

7. In dealing with that first issue, I am satisfied that, as contended by the father and the ICL, the amount of time that the children would spend away from school, in order to attend appointments with Dr T, is relatively brief and will not adversely impact upon their education.  Further, as against the fact that they will miss some school time, there may be benefits to the children attending upon Dr T at those times, rather than after school, as they will be able to more readily engage in the therapy in circumstances where they are not as tired as they otherwise would be at the end of a school day.

8. The more difficult issue, in these proceedings, is whether Dr T should be replaced as a result of her having expressed an opinion on two issues which remain before the Court.  Those issues are:

   a)Whether it is necessary for the children’s time with the father to be supervised; and

   b)Whether it is appropriate for the children to be collected from their school by the father.

9. The mother contends that, the fact that Dr T has expressed an opinion contrary to the position advanced by the mother in relation to those matters gives her concern as to whether Dr T is appropriately objective, such that she can have confidence in the therapy provided by Dr T.  The mother notes that, in my decision dated 11 January 2019, I expressed the opinion that it was important for both parties to have confidence in the therapist appointed, rather than for the therapist to be selected solely by only one of the parties.

10. I note that Dr T is not a therapist who has been involved in previous therapy with either of the parties and that she was selected through a cooperative process whereby the mother selected Dr T from a list of three potential therapists provided to her by the father.

11. The question, therefore, becomes whether, since the appointment of Dr T in accordance with the orders, events have occurred which justify the mother, acting reasonably, to losing faith in Dr T as a therapist, such that it is appropriate for Dr T to be replaced.

12. In my opinion, that would not be appropriate for the following reasons.

13. Dr T’s opinions regarding supervision of the children’s time with the father and whether he should pick them up from school were expressed in respect to specific questions asked of her by the father.  There is no evidence that her opinions, in those regards, were improperly influenced in any way or that she remains rigidly attached to those views.  Specifically, Dr T has not been provided with the report of the Single Expert in this matter, Dr R.  I consider that Dr T’s opinions, in those regards, were truly her own opinions, rather than as an alignment to the position of the father.

14. In any event, receipt of Dr R’s report may change the views of Dr T.  Whether it does or not is, however, irrelevant.  That is because Dr T was appointed to provide family therapy to the father and the children, not to express her opinion on matters that are the subject of consideration in the litigation between the parties.

15. For those reasons, the mother has failed to satisfy me that it is necessary or appropriate to vary the orders. 

16. To the contrary, I am satisfied that it would be inappropriate to vary the orders, for the following reasons:

    a)Replacing Dr T will render useless the work she has done to date in conferring with the father on five occasions;

    b)The father has incurred a not insubstantial expense in respect to the services already provided by Dr T, albeit, they will ultimately be shared with the mother; and

    c)Most significantly, it is contrary to the interests of the children for there to be further delay in the commencement of them engaging in family therapy because that would further delay the prospect of their relationship with the father being restored.

17. Accordingly, I reject the mother’s oral application to vary the orders and confirm that, in accordance with order 3, the mother is required to facilitate the children’s attendance at family therapy, as recommended by Dr T.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice McClelland delivered on 10 May 2019.

Associate: 

Date:              10 May 2019