HUNTER & HILLMAN

[2019] FamCA 494

FAMILY COURT OF AUSTRALIA

HUNTER & HILLMAN [2019] FamCA 494

FAMILY LAW – PARENTING – Complex family case – therapeutic and reputable psychological/psychiatric interventions for children – case management directions.
APPLICANT:	Mr Hunter

RESPONDENT: Ms Hillman

INDEPENDENT CHILDREN’S LAWYER: Mr Dunstan and Ms Hams

FILE NUMBER: MLC 10043 of 2016

DATE DELIVERED: 15 July 2019

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 15 July 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: In Person

SOLICITOR FOR THE APPLICANT: Not Applicable

COUNSEL FOR THE RESPONDENT: Mr Harper

SOLICITOR FOR THE RESPONDENT: MMH Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER Ms Hams

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER
FOR KK BORN … 2012 & L BORN … 2012 Southern Family Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER Mr Glezakos

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER
FOR D BORN … 2001, E BORN … 2003 & B BORN … 1999 Bowlen Dunstan and Associates Pty

Orders

1. Paragraphs 3, 4 and 6 of the Order made 27 May 2019 be discharged.

2. For the avoidance of doubt, paragraph 5 of the said Order does not compel the Independent Children’s Lawyer to arrange a conference between Ms R and Dr S or for Ms R to participate in any such conference.  If Ms R does participate in such a conference with Dr S, that she make reference to it in her report.

3. Paragraph 7 of the said Order and paragraph 1 of the Order made 12 April 2019 be discharged and in lieu thereof the Independent Children’s Lawyer for the children D and E send to the girls’ respective treating psychologists the following;-

   (a) The reports of Dr C dated 3 February 2017 and 16 February 2017;

   (b)       The report of Dr T dated February 2018;

   (c)       The Family Report of Ms V dated 16 August 2018;

   (d)       A copy of the letter from Dr T dated 5 June 2019; and

   (e)       When published, these reasons.

4. The Independent Children’s Lawyer inform the older girls whose interest they represent of this Order.

5. The father have leave to make an oral application for an order to enable him to provide Ms R’s report dated 12 February 2019 to the presiding Magistrate (or Clerk of the Magistrates’ Court) for the Intervention Order proceedings listed this afternoon.

6. My reasons be transcribed, and when transcribed be provided to the parties.

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 Hunter & Hillman 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 MELBOURNE

FILE NUMBER: MLC 10043 of 2016

Mr Hunter

Applicant

And

Ms Hillman

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

And

INDEPENDENT CHILDREN’S LAWYER

EX TEMPORE REASONS FOR JUDGMENT

1. The matter comes before me for mention with a few matters having occurred in the interim.  It is listed before me for final hearing on 21 October 2019.  The proceedings concern the two younger children, D born in 2001 and E born in 2003 who were born after the cessation of the residential relationship between the mother and the father but were included in family events and more particularly time spent between the father and the older children.  The father now seeks residence of these children, in short, due to what he alleges are significant deficits in the mother’s parenting capacity and the emotional harm to the children should they continue to reside predominantly with the mother.

2. There has been considerable toing and froing in relation to professional reports.  On the last occasion, which was 27 May 2019, I acceded to an application by the mother that Dr S, consultant psychiatrist, prepare a report at the sole expense of the mother.  At that stage, Dr S had written a conspicuously lengthy report to the Independent Children’s Lawyer detailing his reservations about further reportable assessment by him in this matter having regard to the previous report which had been delivered by Ms R, psychologist.  Nonetheless, I ordered that Dr S could prepare a report in addition to Ms R preparing a further supplementary report which went to certain deficiencies which the Court and the practitioners had identified were in Ms R’s report.

3. Today, the Independent Children’s Lawyer informs the Court that on 10 July 2019, she had a conversation with Dr S and provided the following:

   “[Dr S] was a little perplexed to receive a copy of the Orders, which I sent to him, after Orders were made for him to do a report in addition to [Ms R].  He was of the view that the critical question, is and it was the intention in his preliminary report to give options to the Court in relation to ensuring that her Honour has the best evidence available.  He was of the view, that if [Ms R] was ordered to do an updated report, he did not see any point in him repeating the process.  It was on his advice, it was intended that his report was an ‘or’ not an ‘and’ and he is of the view that he thinks [Ms R] can cover all outstanding matters adequately, particularly in circumstances where she has been provided a copy of his report, which I have done so.  He was of the view that she can explore the relationship as between [K] and [L] and [Mr Hunter], and she has made an appointment to attend upon the parties on the 23^rd of July.  Otherwise, it is his view that the overriding question in the proceedings is the impact of the mother’s mental health on her parenting capacity.  He was of the view that he did not want to unnecessarily undertake further assessments.  He was of the view that he could see no purpose in duplicating assessment.  He would be happy to speak to [Ms R] and be happy to do that as a professional curtesy.

   HER HONOUR: Does that mean free?

   I think it would, I think he would do that for free, just a consultation if she had any questions or required any guidance.  He did have a look at [Ms R’s] qualifications with me and was satisfied that she would be able to undertake the report as necessary.  He said that if her Honour was still of the view that the report was required, he would seek an order that he speak to [Ms V] and see how he could ‘value add’.  He would be happy to act as a sounding board or, if necessary fill in gaps, if any deficiencies were in [Ms V]’s report that she couldn’t cover, and that would be at a lesser costs than what had been anticipated.  He was of the view that this matter does not require any specific psychiatric input, as the psychiatric evidence in the matter will be coming from [Dr C] and [Dr T].”

4. The father, the Independent Children’s Lawyer for the elder children and the Independent Children’s Lawyer for K and L are all of the view that Dr S’s services can be dispensed with.  It is only the mother who seeks that Dr S proceed to prepare a report. 

5. I’ve heard from Mr Harper who has argued forcefully for a further report by Dr S, in the alternative, for the family report process to be completed undertaken by another unspecified person.  Mr Harper says that there are deficiencies in Ms R’s initial report which should be filled by either Dr S or another psychologist.  In my view, that does not follow.  The person who is most fitting to fill the gaps in her own report is the report writer herself.  She will obviously, taking the submissions of Ms Hams into account, have recourse to Dr S if she wishes to do so.  However, she may just do the report based on her own assessment.  Come what may, Dr S will not be available for cross-examination during the dates for hearing otherwise than perhaps by telephone.

6. In my view, it is not consistent with the children’s best interests for them to be seen by Dr S given Dr S’s clear indication that he does not think he can add value to the process, and it is certainly not in the children’s best interests to be seen by another family consultant to undergo a formal reporting process again;  therefore, I will be discharging the orders which provided for Dr S to prepare a report as well as the orders which required the mother (as she agreed) to be solely responsible for the cost thereof.

7. The next matter for determination is what is to be done in relation to an extant order which has been once amended, the purpose of which would be that a practitioner Dr W explain to the older children, D and E, the psychiatric illness with which their mother has been diagnosed or from which it is alleged she suffers.  The concern is that the mother does not tell the truth and that she has caused or permitted the older children to have a profoundly false view of reality as it pertains to the father.

8. Dr W has informed the Independent Children’s Lawyer for the older children that he does not consider it is in those children’s best interests nor appropriate for him to undertake the process because he is not a therapeutic treater of the children and to simply declare to the children what difficulties their mother may suffer without being able to do that in the context of offering any therapeutic support would do more harm than good.  Today, the Independent Children’s Lawyer for the older children seeks a discharge of the operative orders which are paragraph 1 of the Order made on 12 April 2019 and paragraph 7 of the Order made in May 2019.

   RECORDED  :  NOT TRANSCRIBED

9. The Independent Children Lawyers for both sets of children support the therapists of the older children being provided with copies of the original assessment of the mother by Dr C, the subsequent assessment of the mother by Dr W and the family report prepared by Ms V dated 16 August 2018.  That was the suggestion initially of Ms Hams for which the Court is grateful.  The father is also content with that going forward.

10. Mr Harper for the mother seeks a discharge of the Orders in relation to the girls attending upon Dr W and does not oppose the balance of the Orders which the other three parties seek.  I’m satisfied that it is appropriate that I make those orders having regard to the best interests of E and D.

11. I note that E and D each have treating psychologists.  Dr X sees D every three weeks, and Ms Y sees E every three weeks.  In August, D will attain the age of 18 years and be a child who is not subject to any orders of this Court.  Accordingly, the Independent Children’s Lawyer should ensure that the information detailed in the orders is sent promptly so that there is adequate opportunity for at least one session between now and that time.

12. I don’t suggest that the treating psychologist would be in any way impeded from discussing this matter with D after she attains the age of 18 years; however, if she were now 18, I would consider her to be a necessary party to the proceedings in which I made such an order. 

13. The next matter which I am required to decide is an oral application of the father made today without notice that he be permitted to provide a copy of the family report of Ms R dated 12 February 2019 to the Magistrate who is presiding this afternoon in some capacity on an extant proceeding by the father for an Intervention Order against the mother for the protection of his oldest child Johnathon aged 20. 

    RECORDED  :  NOT TRANSCRIBED

14. Notably, Ms R’s report has not been tested in cross-examination.  Ms R’s report has, as is indicated earlier in these reasons, been identified as containing certain omissions in relation to her assessment of the younger children in respect of whom the father now applies for residence.  There are two aspects to the father’s application.  The application is made without notice and orally.  I first have to grant leave for the application to be made.  Mr Harper who appears for the mother says quite correctly that he did not have notice of this application.  He has, however, obtained instructions and the upshot of those instructions was that the application is opposed, but if granted, the presiding Magistrate would have to be informed clearly and by way of, I think he said, “detailed explanation” that the report has not been subject to cross-examination and is, therefore, not evidence which has been accepted by the Court. 

15. I am satisfied that Mr Harper has had an opportunity to obtain instructions commensurate with the relief sought.  He has not requested a longer period in which to obtain instructions, but if I were to provide for it, I am mindful that the opportunity of providing the presiding Magistrate with a copy of the report this afternoon would be lost.  I do not know whether the matter is listed this afternoon for mention or for contest.  Come what may, however, it would be opportune to place the report on the Court file when it is actually in Court, rather than send it in by correspondence, hoping that it would, at some stage, reach the Court file. 

16. I grant leave to the father to make the application orally. 

17. In dealing with the substance of the application, I am satisfied that the exchange of information between Courts in relation to this family is fundamentally in the best interests of the children whose welfare I am required to take into account.  In particular, that B who is a resident in the father’s household is able to be protected by Intervention Orders which can be granted by the State Court in the exercise of its jurisdiction. 

18. I am not indicating that an Intervention Order should, necessarily, be granted.  My intention is that the Magistrate who is to determine that application has information relevant to the parties. 

19. I have endorsed the report which I have on the Court file of the following, “This report has not been tested by cross-examination.  Bennett J, 15/7/19.”  I will ask my Court officer to photocopy that report for the parties as soon as the Court rises, and it is that report which is to be given to the presiding Magistrate.  As the mother and the father in these proceedings are both before that Magistrate this afternoon, it is appropriate that both have the same copy which they can provide. 

20. Accordingly, they will need to have two copies each and the Magistrate will need one copy, so four copies ought to be made and distributed accordingly.   

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 15 July 2019.

Associate: 

Date:  24 July 2019