In the Marriage of R [Children's Wishes]

This matter came before the Full Court of the Family Court of Australia on appeal from orders made by Guest J. The appeal concerned the weight to be given to the evidence of a child's treating psychiatrist, Dr D, and the subsequent findings regarding the child's contact with her father. The primary dispute revolved around the child's alleged terror during visits to her father and the psychiatrist's recommendation that contact should cease until the child initiated it.

The legal issues before the Full Court included whether the trial judge erred in his assessment of Dr D's evidence, particularly his criticism of the psychiatrist's terminology and his consideration of the psychiatrist's methodology. The court was also required to determine whether fresh evidence, which was sought to be admitted on appeal, should be considered, and ultimately, whether the appeal should be dismissed and the original orders upheld.

The Full Court found that the trial judge's criticisms of Dr D's evidence, including his assessment of the psychiatrist's objectivity and his approach to video evidence, were not unfounded. While acknowledging the psychiatrist's expertise, the court agreed with the trial judge that Dr D's language was hyperbolic and that his consultations, consistently held with the mother present, may have impacted his objectivity. The court also noted that the trial judge had the advantage of observing the child and the parties, which Dr D did not have in the same context. Consequently, the Full Court declined to admit the fresh evidence on appeal.

The appeal was dismissed, meaning the orders of Guest J were to be complied with, though adjustments might be necessary regarding the commencement date. The court expressed the view that the mother's approach was crucial to resolving the difficulties, suggesting that her encouragement of contact would likely resolve the issues. However, the court warned that if the mother did not change her approach, a future judge might need to consider ordering the child to reside with the father, acknowledging the complexities and potential difficulties of such orders, particularly in cases of parental alienation.