Hope and Kingston

[2013] FamCA 86

FAMILY COURT OF AUSTRALIA

HOPE & KINGSTON [2013] FamCA 86

FAMILY LAW – CHILDREN – order for a child to be taken by parent for participation in therapy for the parent to learn skills about handling the child.

Family Law Act 1975 (Cth)

APPLICANT: Ms Kingston

RESPONDENT: Mr Hope

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 12980 of 2007

DATE DELIVERED: 18 February 2013

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 18 February 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Wilson

SOLICITOR FOR THE APPLICANT: Altavilla Vessali

COUNSEL FOR THE RESPONDENT: Mr Berger

SOLICITOR FOR THE RESPONDENT: Berger Kordos Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Harris

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Victoria Legal Aid

Orders

1. That the mother be permitted to have the child J born … August 2007 attend with her upon Dr B for observation sessions in accordance with any recommendation made by Dr B and without any finding as to the necessity for this limitation, such observation sessions be limited to those Dr B considers necessary in order to advice and assist the mother with the matters referred to by Dr K in his report dated 26 November 2012 at paragraphs 139 to 141, 33 and 157(b).

2. The application in a case and response thereto are otherwise dismissed.

3. That the costs of the parties of this day are reserved to the trial.

4. That a transcript of today’s hearing be made available and a copy of it be provided by the Independent Children’s Lawyer to Dr B.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Hope & Kingston 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: MLC 12980  of 2007

Ms Kingston

Applicant

And

Mr Hope

Respondent

Independent Children’s Lawyer

REASONS FOR JUDGMENT

The substantive dispute

1. A parenting dispute is listed for final hearing before me in April concerning 5 year old J, (“the child”). The issue concerns where he will live. Until recently, the child lived with his mother but because of an injury he sustained, orders were made that he live with his father. The mother’s time with the child was then restricted and although it is not now supervised, it is still time limited each week.

2. The child has been examined by a number of health practitioner specialists and the Court is to hear from some of them. One issue about which there was some past dispute was whether the child was affected by Autism Spectrum disorder. It would seem that the Court-appointed single expert witness does not think that disorder is applicable.

3. Another expert, Dr K has expressed concerns about the mother’s parenting of the child questioning whether she is enmeshed with him.

4. All of this evidence is untested and I am not in a position to make any findings about any disputed facts at the moment.

The interlocutory hearing

1. The interlocutory hearing before me on 18 February 2013 concerned the mother’s request to be able to take the child with her to a psychologist whom she was attending for the purpose of assisting predominantly her own therapy concerning parental capacity issues. It is evident that this step arises from what Dr K says about her.

2. The father strongly opposes any involvement of the child with Dr B.

3. The Independent Children’s Lawyer took the view that it was a fine line and there were arguments for and against it.

The evidence

1. The proposed psychologist is a Dr B who has already had involvement in the proceedings. She has met the child. There was a suggestion by the father that she had formed the view about the child having Autism Spectrum Disorder but as counsel for the mother pointed out, Dr B was questioning whether that was the problem. As such, I do not think Dr B has made such a diagnosis.

2. The mother’s position as articulated in an affidavit was that she is now attending Dr B to “assist with various behavioural management and communication strategies” to assist in parenting. She said that Dr B thought the sessions would be meaningful and beneficial for the child if he attended some as well. That certainly seemed to be the view of Dr B as set out in an affidavit filed on her behalf.

3. The father had been requested to agree for the child to attend Dr B but he refused.

4. The father’s position was that this was an attempt to get around the diagnosis of there being no Autism Spectrum Disorder because Dr B had some expertise in the area and had previously formed a view. That problem was overcome by Dr B being directed to deal specifically with the counselling and therapy as described.

5. The father also complained that the mother had approached Dr B and should not have. There is something to be considered in that issue but it seems to me that it does not affect the work that needs to be done immediately to assist the determination at trial.

6. The solicitor for the father said that Dr B’s expertise would be challenged although I am not clear on where her talents were lacking. The proposal of the mother seemed to concern treatment rather than opinion. Indeed, if this order was made and the child attended Dr B, the evidence about what occurred would be open to scrutiny.

The parties’ positions

1. The father’s view was that the mother could get a different but suitably qualified professional. As such, I conclude he did not have any objection to the sort of “treatment” being contemplated by the wife but rather the person involved. That would then mean that the child would be taken to another professional and as I pointed out earlier, he has already seen many. I did not see the point in that.

2. The gravamen of the father’s complaint lay in the relationship of the mother and Dr B but that issue can be carefully scrutinised by the Court.

3. Counsel for the Independent Children’s Lawyer said that one advantage was that the Dr K report expressed concerns about the mother’s parenting so this was another opportunity for the Court to see what she was really like. Unlike with other evidence, this time, the expert would be able to protect the child against any emotional or physical harm because she would be present. I say that even though it seems clear that the Court previously had removed supervision of the mother and child time.

4. The father has no trust in the mother and considers this is a way of establishing something other than what the expert says is the case. It is plain that even if there is a finding at trial that the child has a relationship problem with his mother, it may be that at trial, an order might be made for some sort of therapeutic program such as this.

Legal issue

1. The power of the Court to make this order was not disputed.

2. Here, the parties seek a parenting order and each proposes a different outcome.  It is the function of the Court to determine in a disputed parenting situation what it considers to be in the child’s best interests.  Part VII provides the requirements that a court must follow if it is to make a parenting order.  The court must consider a variety of factors to determine the best interests’ principles.  Additionally, s 65D(1) provides that having contemplated all of those matters, the court should only make an order if it is proper to do so.

3. Ultimately, the Court will have to consider all of the matters in s 60CC to enable it to make a proper order. 

4. By s 60CC(3), the court is mandated to consider inter alia, the nature of the relationship of the child with the parents and also the impact upon the child of any separation from them. 

5. I consider it is proper for the parents to present evidence that will affect the ultimate decision particularly where there was a long-standing parent and child caring relationship and there is now significant disquiet as to how the child was hurt and whether the mother was somehow involved in that.  The mother should have the opportunity to objectively prove her capacity. If the father is correct that Dr B is not qualified, not objective or indeed biased, the father will have the opportunity to test that. My concern is that the child is safe and having regard to the concerns expressed by Dr K, this seems a good way to look at the risk.

6. I made the orders accordingly.

7. The mother sought costs and it was agreed that they should be reserved to the trial.

I certify that the preceding twenty four (24) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 18 February 2013.

Associate: 

Date:  18 February 2013