Kyrkos and Malkin - [2020] FamCA 649

FAMILY COURT OF AUSTRALIA

KYRKOS & MALKIN

[2020] FamCA 649

FAMILY LAW – PARENTING – PRACTICE AND PROCEDURE – Where the Independent Children’s Lawyer has made an Application for the children to attend therapeutic counselling with a clinical psychologists and for that counselling to be non-reportable and confidential – Where the mother wholly supports the Independent Children’s Lawyer’s Application – Where the father agrees to the children attending counselling, however, opposes the Application to the extent that the counselling be non-reportable – Where the father contends that the parties and the Court should have access to the clinical notes taken by the psychologist and that the psychologist be available for cross-examination in respect to her treatment and recommendations for the children – Where the Application is made in circumstances where both parties acknowledged the children witnessed a family violence incident – Where the single expert report available to the parties notes that the children have expressed concern that what they say to a third party may be reported back to the father – Consideration given to the Court’s obligation to have regard to the welfare of the children – Consideration given to the principles that the Court must have regard to in exercising its powers in child-related proceedings – Orders made in accordance with those proposed by the Independent Children’s Lawyer.

Family Law Act 1975 (Cth) ss 43, 69ZN, div 12A
Family Court Rules 2004 (Cth) pt 15.5, r 15.32
Explanatory Memorandum, Family Law Amendment (Shared Parental Responsibility) Bill 2005 (Cth)

Crawford & Sisinis and Anor [2014] FamCA 912
Kinsella v Kinsella 696 A.2d 556, (NJ, 1997)
Reimann & Reimann [2017] FamCA 318

APPLICANT:

Ms Kyrkos

RESPONDENT:

Mr Malkin

INDEPENDENT CHILDREN’S LAWYER:

Claremont Legal

FILE NUMBER:

SYC

8562

2017

DATE DELIVERED:

10 August 2020

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

McClelland DCJ

HEARING DATE:

28 July 2020

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Ms Nenkes of Pearson Emerson Family Lawyers

SOLICITOR FOR THE RESPONDENT:

Mr Piringji of Argus Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Fermanis

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Claremont Legal

Orders

THE COURT NOTES THAT:

A.Ms B, Clinical Psychologist, of the D Services has been engaged for the purpose of providing therapeutic assistance to Z born … 2019 and W born in 2011 (“the children”).
B.Counselling of the children by Ms B is to be confidential and Ms B will not be required to give evidence, or produce any documents requested under subpoena, in these proceedings.

THE COURT ORDERS THAT:

Leave is granted to the Independent Children’s Lawyer to provide to Ms B:
(a)A copy of the expert report prepared by Dr C dated 12 September 2018; and
(b)A copy of these Orders.
Within seven (7) days of the date of these Orders, the Independent Children’s Lawyer shall contact Ms B and request that she speak with the Principal, the Classroom Teacher for each of the children and the school counsellor at D School for the purpose of assisting her to provide counselling…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Kyrkos and Malkin

Details

AGLC: Kyrkos and Malkin [2020] FamCA 649
Case: [2020] FamCA 649
Decision Date: 10 August 2020

CaseChat Overview and Summary

This matter concerned an application before McClelland DCJ in the District Court. The dispute involved the provision of therapeutic assistance to two children, Z and W, by a clinical psychologist, Ms B, engaged by D Services. The court was required to make orders concerning the engagement of Ms B and the confidentiality of her counselling.

The primary legal issues before the court were whether to grant leave for the Independent Children’s Lawyer to provide certain documents to Ms B, and whether to order that Ms B's counselling of the children be confidential, with Ms B not being required to give evidence or produce documents under subpoena. The court also considered the process by which Ms B would liaise with the children's school.

McClelland DCJ reasoned that it was in the best interests of the children for Ms B to have access to relevant information to assist her in providing counselling. The court therefore granted leave for the Independent Children’s Lawyer to provide Dr C’s expert report and the court’s orders to Ms B. Furthermore, the court ordered that Ms B's counselling of the children be confidential, acknowledging that this would facilitate the therapeutic process and that Ms B would not be required to give evidence or produce documents. The court also directed the Independent Children’s Lawyer to contact Ms B to arrange for her to speak with the children's school personnel.

Orders

Orders of the court

THE COURT NOTES THAT:

A. Ms B, Clinical Psychologist, of the D Services has been engaged for the purpose of providing therapeutic assistance to Z born … 2019 and W born in 2011 (“the children”).

B. Counselling of the children by Ms B is to be confidential and Ms B will not be required to give evidence, or produce any documents requested under subpoena, in these proceedings.

THE COURT ORDERS THAT:

Leave is granted to the Independent Children’s Lawyer to provide to Ms B:

(a) A copy of the expert report prepared by Dr C dated 12 September 2018; and

(b) A copy of these Orders.

Within seven (7) days of the date of these Orders, the Independent Children’s Lawyer shall contact Ms B and request that she speak with the Principal, the Classroom Teacher for each of the children and the school counsellor at D School for the purpose of assisting her to provide counselling to the children.

Counselling of the children by Ms B be confidential.

The parties are granted liberty, in the event that any party wishes to make an Application for costs, to file brief written submissions, within seven (7) days of the date of these Orders, of no more than two (2) pages.

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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